When conducting workplace investigations, one issue that we commonly face is ensuring that the process is completed in a timely manner to minimise any disruption and uncertainty in the workplace. However, whilst investigations should be completed as quickly as possible, this must not come at the expense of procedural fairness being provided to all employees involved.
Such was the case in the recent decision of Smout v BHP Coal Pty Ltd [2024] FWC 2062. In this decision, the Fair Work Commission (FWC) found that an employer’s failure to complete a thorough investigation and provide procedural fairness rendered the employee’s dismissal unfair, despite finding that the employee’s misconduct was a valid reason for dismissal.
The employee had been employed with BHP Coal Pty Ltd (the Employer) for 38 years as an operator in a coal mine in far north Queensland. His employment was terminated in late March 2024 following an investigation into claims of sexual harassment made by two female cleaners contracted to work at the same mine.
The claims related to three separate incidents occurring in early March, including that the employee:
The employee was stood down on 22 March 2024 for “unspecified allegations of misconduct” and was later provided with the three allegations listed above. The employee was interviewed as part of the investigation on 25 March 2024 and the report was finalised and provided to the Employer the following day, finding that the allegations were substantiated.
On 28 March 2024, the employee attended a 5–10 minute show cause meeting by telephone. During this meeting, he was advised that the allegations had been substantiated and that his employment would be terminated unless he could provide reasons to convince the Employer otherwise.
The meeting was reconvened after a 30-minute break, at which time the employee was notified of his dismissal.
The FWC was satisfied that all three incidents occurred and found that two of the three incidents amounted to sexual harassment. Although the employee submitted that he did not intend to harass or offend the female cleaners and that he was only attempting to “make a joke”, the FWC noted that the employee’s intention was “irrelevant to the question of whether his conduct was unwelcome, or objectively offensive, humiliating or intimidating”.
Finding that the employee’s conduct formed a valid reason for dismissal, the FWC turned to whether the employee was provided with procedural fairness.
The FWC raised significant concern about the investigation, finding that it was neither external nor independent (as it purported to be) and further that a portion of it was flawed. Specifically, the FWC considered that:
The FWC stated that in circumstances where a similar investigation would normally have taken the investigator some twenty days, a seven-day investigation process was unacceptable, and led to the inevitable conclusion that the evidence could not have been appropriately assessed.
The FWC was also critical of the show cause process and found that half an hour did not constitute a “real” or sufficient opportunity for the employee to respond to the allegations or for the Employer to consider such responses.
The FWC found that the Employer “cut corners” and rushed the investigation and dismissal process because of a pending ownership transfer on 2 April 2024 and that no one from the Employer’s team wanted to work over the Easter long weekend.
The FWC concluded that, even though the employee’s actions amounted to sexual harassment and were a valid reason for dismissal, he was still entitled to “a fair go”, which should have included a thorough investigation process and a “full opportunity to respond” to the allegations prior to his dismissal.
The dismissal was therefore found to be unfair, and the employee was awarded compensation in the amount of one week’s pay, representing the remaining length of the show cause process that should have taken place.
When dealing with allegations of misconduct that contain significant factual disputes, it is critical for employers to ensure that a thorough investigation is conducted that properly considers all of the available evidence. Depending on the circumstances of the matter, it may be more appropriate for an external investigation to be conducted.
A failure to provide a full investigation process and procedural fairness may result in a finding that the dismissal was ultimately unfair, even where there is a valid reason for dismissal.
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